Outler v. Southern Bell Tel. & Tel. Co.

Decision Date19 November 1979
Docket NumberNo. 58579,58579
PartiesOUTLER v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
CourtGeorgia Court of Appeals

Page 230

263 S.E.2d 230
152 Ga.App. 424
OUTLER

v.
SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
No. 58579.
Court of Appeals of Georgia.
Submitted Sept. 6, 1979.
Decided Nov. 19, 1979.

Page 231

[152 Ga.App. 425] Fred S. Clark, Savannah, for appellant.

Sandra J. Evans, Atlanta, for appellee.

[152 Ga.App. 424] SHULMAN, Judge.

This is an appeal from the superior court's affirmance of the State Board of Workers' Compensation order denying appellant's application for an award based on his "change in condition." See Code Ann. § 114-709. We reverse.

Since the board's conclusions of law were based on the then proper, but since declared erroneous, legal theory that claimant could only recover upon a showing that his physical condition had worsened (see Hartford Acc., etc., Co. v. Bristol, 242 Ga. 287, 248 S.E.2d 661), the board's determination and the superior court's affirmance must be reversed.

The fact that the board found that claimant was willing and able to return to his former employment (from which he was terminated for reasons unrelated to his disability) does not preclude a finding that he was nevertheless unable to secure other suitable employment because of his previous accidental injury. Indeed, in its finding of fact the board determined that prospective employers refused claimant employment upon learning of his accident-related injuries (and that although claimant attempted to drive a truck, his injuries rendered truck driving unsatisfactory employment). Thus, contrary to appellee-employer's contentions, there was probative evidence of claimant's efforts to secure suitable [152 Ga.App. 425] employment and evidence "that his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury." Id., p. 288, 248 S.E.2d at p. 662.

Therefore, since the board's award was based on an erroneous legal theory which precluded its consideration of evidence authorizing a contrary result, the judgment of the superior court affirming the board's award (although not on the theory of law relied upon by the board) must be reversed. See Home Ins. Co. v. Burnett, 146 Ga.App. 355, 246 S.E.2d 394, and this writer's dissent therein.

Judgment reversed.

DEEN, C. J., and CARLEY, J., concur.

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4 cases
  • Cornell-Young (Macon Pre-Stressed Concrete Co.) v. Minter, CORNELL-YOUNG
    • United States
    • United States Court of Appeals (Georgia)
    • October 6, 1983
    ...sides had ample opportunity to fully present evidence, such situation does not obtain here. In Outler v. Southern Bell Tel., etc., Co., 152 Ga.App. 424, 263 S.E.2d 230 following Hartford Accident, etc., Co. v. Bristol, 242 Ga. 287, 248 S.E.2d 661 supra, this Court recognized that even thoug......
  • Georgia Power Co. v. Brown, 66679
    • United States
    • United States Court of Appeals (Georgia)
    • November 28, 1983
    ...findings based upon the correct legal theory of "change of condition" might be made. See Outler v. Southern Bell Telephone etc. Co., 152 Ga.App. 424, 263 S.E.2d 230 3. Appellee's treating physician was the deponent who, as discussed in Division 1, refused to be deposed in the presence of ap......
  • J & M Transp. Co. v. Crowe, 68480
    • United States
    • United States Court of Appeals (Georgia)
    • November 20, 1984
    ...findings based upon the correct legal theory of 'change of condition' might be made. See Outler v. Southern Bell Telephone, etc., Co., 152 Ga.App. 424, 263 S.E.2d 230 (1979)." See also Cornell-Young, etc. v. Minter, supra at 2. Appellant also enumerates as error the order of the superior co......
  • Bembry v. Johnson, 58552
    • United States
    • United States Court of Appeals (Georgia)
    • November 19, 1979
    ...263 S.E.2d 229 152 Ga.App. 422 BEMBRY v. JOHNSON. No. 58552. Court of Appeals of Georgia. Argued Sept. 6, 1979. Decided Nov. 19, 1979. [152 Ga.App. 424] Joe Bembry, pro George P. Dillard, William F. Rucker, Decatur, for appellee. [152 Ga.App. 422] SHULMAN, Judge. Defendant was convicted in ......

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